Asberry v. Cate et al

Filing 101

ORDER denying 99 Motion to Amend signed by Magistrate Judge Kendall J. Newman on 05/02/13. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,
Plaintiff,

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No. 2: 11-cv-2462 KJM KJN P

vs.

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MATTHEW CATE, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner, proceeding without counsel, with this civil rights
action seeking relief pursuant to 42 U.S.C. § 1983.
On April 5, 2013, plaintiff filed a motion to amend his complaint. Plaintiff’s

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motion was not, however, accompanied by a proposed amended complaint. As a prisoner,

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plaintiff’s pleadings are subject to evaluation by this court pursuant to the in forma pauperis

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statute. See 28 U.S.C. § 1915A. Because plaintiff did not submit a proposed amended

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complaint, the court is unable to evaluate it. For this reason, the motion to amend is denied.

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In the motion to amend, plaintiff alleges that he incorrectly named defendant Dr.

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Chen as a defendant. Plaintiff alleges that he believed that Dr. Chen was inmate Wilson’s

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psychologist. Plaintiff alleges that he now realizes that Dr. Chen was not inmate Wilson’s

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psychologist. Plaintiff alleges that he will not know the name of inmate Wilson’s psychologist

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until after he conducts discovery. Plaintiff requests information regarding how to proceed as to

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this matter.
If defendant Chen is improperly named as a defendant, then plaintiff may file a

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motion to voluntarily dismiss defendant Chen. Plaintiff may not file a motion to amend his

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complaint and proposed amended complaint naming inmate Wilson’s doctor as a defendant until

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he knows the name of that person.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to amend (dkt.

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no. 99) is denied.

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DATED: May 2, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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as2462.den

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